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Jay Carr could have kept all of this from happening

But he didn’t. Because Jay Carr is not a person. And if he was a person, he would have been ignorant of the seeds of controversy that were planted a while ago. But if he had been a person and if he had known of a lawyer’s conversation with a client, this whole investigation of Revenue Department records retention practices and the growing ripples from the investigation might not be creating the Kabuki theatre production that is diverting attention away from the mundane happenings in legislative chambers as this session enters its final weeks.

Kabuki seems to be an appropriate description. It’s a dance-drama performance. Those who have watched the drama build during the last month have seen a lot of dancing to go with it.

And Jay Carr, which is legislator-speak for JCAR, the Joint Committee on Administrative Rules, could have stopped all of this before it started. But Jay Carr never had the chance. Because nobody told Jay Carr that something had not been done. And if you know nothing about the nothing that was done, you can’t do anything.

There could be Hell to pay when Jay Carr and his friends learn something about nothing being done. That became a key piece of information that came out this week in the investigation of new Revenue Department procedures for issuing driver’s licenses and other state ID cards.

The root of all of this was exposed last Wednesday night, the 10th, when Jackie Benboom, the head of the motor vehicle licensing in the department, met with the Senate Appropriations Committee and was confronted with the state administrative rule (12CSR10-24.448 for those who are fascinated by such things) requires that proof of lawful presence in this country has to be SHOWN to the clerks at the license office. But nothing in the rule says anything about scanning and retention of documents. Benboom said she’d been advised by the department’s lawyer that the rule did not need to be changed to require scanning and saving. That brought General Counsel Trever Bossert to the microphone to maintain, “the scanning and the retention is an internal procedure. Doesn’t change what an individual is required to bring to the office.”

Senator Kurt Schaefer of Columbia (committee chairman): “Right. But isn’t the point of a rule, and as Chapter 536 specifically states, the purpose is to notify the public of standards of general applicability and things that they’ll have to comply with when they come forward to do stuff?” When Bossert agreed, Schaefer asked, “You decided not to promulgate a rule?”

Bossert: I think that is correct.

Schaefer: Still think that’s a good idea?

Bossert: …There are certainly pros and cons.

Mr. Bossert had just spilled some of his blood in the water. And the committee sharks recognized it.

Later, Bossert was called back by Senator Ryan Silvey of Kansas City, who wanted to know what the “cons” are.

Bossert: I suppose the cons of promulgating a rule would be the, you know, mainly the administrative burden of bringing the rule up.

Silvey: So the administrative burden of having oversight, because the promulgated rule goes through Jay Carr which the members of the House and Senate have an opportunity to review and weigh in on, so that’s too big of a burden that somehow, now the administrative hurdle of going through Jay Carr and the action of the administrative process supersedes the notification of the public of this change?

Bossert: I can’t tell you why the previous director determined that she didn’t need to promulgate a rule.

Silvey: But you advised her that it wasn’t necessary.

Bossert: I think I probably did.

Before the night was out, the committee had eliminated all funding for the motor vehicle licensing operations and specifically cut out the line for Bossert’s salary.

The problem with writing a new rule and running it through the administrative rules system is that the process takes time. And the members of the House and Senate who are Jay Carr would have reviewed it. They probably would have thrown a fit and killed the rule.

But Jay Carr never saw the rule. There was no rule. Now we have some legislators suggesting it’s time for the Governor to step in and start lopping off some heads because of what they perceive as evasion and lack of cooperation. Legislators who continue to bore into this issue have complained frequently that they are unable to get clear, simple, straight answers to their questions. Governor Nixon, who has appointed many of the heads that critics would like to see in a basket, did nothing to quiet the situation when a reporter caught him off-guard during a tour of tornado sites in eastern Missouri on Thursday and asked him if he knew state information had gone to the federal government. He stumbled badly: “Like I say, we, we, we comport ourselves with the law and I’m not, I’m, I, I, I won’t…..uh…(pause)…y’know (pause) uh, We are, uh, (pause) we are following the laws as written by the, by, by the, by, in our state and the federal level, uh, and, uh, you now, I signed a law a couple of years ago saying , saying, what we’d do, and we’ve following those. so I, I uh you know, so I, I will only say, as is our usual (pause) process and procedure we follow the laws and will continue to.” But Senator Schaefer and some of his colleagues are quick to insist that some laws have not been followed.

Now, Schaefer vows the show is about to hit the road, an action not without some peril. The value of the performances in the Capitol lies in the participation of the people responsible for the policies and actions in question as well as those investigating and alleging. A road show that will be heavy with investigators and those doing the alleging runs the risk of taking the effort beyond policy and into politics and there are skeptics who think it is walking a fine line now. It is hard to see how far all of this will go.

Regardless, all of this might not have been possible if Jay Carr had been consulted at the start.